Remanded

Malek Ostam @ Malek Ostam Ali @ Kitab Ali v. the Union of India and 5 Ors.

Gauhati HC16 Jun 2022WP(C)/905/2018

Case brief

AI extract

What is this about?

The Gauhati High Court set aside an opinion declaring the petitioner a foreigner. The Court held that identity must be conclusively established before declaring citizenship status. The matter was remanded to the Tribunal to first determine the real identity of the proceedee.

What did the court decide?

The impugned opinion by the Foreigners Tribunal is set aside. The matter is remanded to the Tribunal to first determine the real identity of the proceedee and thereafter decide the citizenship status.

Malek Ostam @ Malek Ostam Ali @ Kitab… — Constitutional and Fundamental Rights | Gauhati HC (2022)

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GAHC010030982018

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C)/905/2018

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MALEK OSTAM @ MALEK OSTAM ALI @ KITAB ALI S/O- LT IBRAHIM ALI, R/O- VILL- MADARPUR, P.O. CHUTTO NILIBARI, P.S. AMGURI, DIST- CHIRANG, BTAD, ASSAM

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VERSUS

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THE UNION OF INDIA AND 5 ORS.

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REP. BY THE SECRETARY TO THE MINISTRY OF HOME AFFAIRS, GOVT. OF INDIA, NEW DELHI

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2:THE ELECTION COMMISSION OF INDIA REP. BY CHIEF ELECTION COMMISSIONER OF INDIA NIRVACHAN SADAN ASHOKA ROAD NEW DELHI-01

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3:THE STATE OF ASSAM

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REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM HOME DEPTT. DISPUR GHY-6

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4:THE DEPUTY COMMISSIONER BARPETA DIST- BARPETA ASSAM

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5:THE SUPERINTENDENT OF POLICE (B) BARPETA DIST- BARPETA ASSAM

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6:THE STATE CO-ORDINATOR OF NRC ASSAM P.O. AND P.S. BHANGAGARH GHY-5 DIST- KAMRUP (M) ASSA

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Advocate for the Petitioner : MR. S ISLAM

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Advocate for the Respondent : ASSTT.S.G.I.

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B E F O R E HON’BLE THE CHIEF JUSTICE (ACTING) MR. N. KOTISWAR SINGH HON’BLE MR. JUSTICE NANI TAGIA

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Date of hearing :: 24.03.2022

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Date of judgment :: 16.06.2022

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JUDGEMENT & ORDER

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(N. Kotiswar Singh, CJ(Actg.)

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Heard Mr. S. Islam, learned counsel for the petitioner. Also heard Ms. L. Devi, learned counsel, who appears on behalf of Mr. R.K.D. Choudhury, learned ASGI; Mr. J. Payeng, learned Special Counsel, FT; Mr. A. I. Ali, learned Standing Counsel, ECI; Ms. L. Devi, learned Standing Counsel, NRC and Ms. U. Das, learned Additional Senior Government Advocate, Assam.

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2. In this writ petition, the petitioner has challenged the opinion dated 29.01.2018 passed by the Foreigners Tribunal No.5^th , Barpeta in FT Case No.546/2016 by which the petitioner was declared to be a foreigner of post 1971 stream.

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3. It is the case of the petitioner that after receipt of notice from the Tribunal, the petitioner had filed written statement and appeared before it along with the photocopies of the documents relied upon by him in support of his claim that he is a citizen of India. It is the case of the petitioner, as reflected in the written statement, that he is a bona fide citizen of India by birth and his real name is Malek Ostam Ali and his father’s name is Ibrahim Ali, mother’s name is Malekha Khatun and his grandfather is Aynuddin.

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4. It has been stated that his father’s name was enrolled in the voters list of 1970 as Ibrahim Ali vide Part No.15, Serial No.136, House No.32 of village Mini Simla, Mouza-Rupshi, PS. Sorbhog, District-the then Kamrup. It is also the claim of the petitioner that his grandmother’s name was enrolled in the voters list of 1966 as Tasiran Nessa vide Part No.14, Sl No.113, House No.32, village Mini Simla, Mouza-Rupshi, PS. Sorbhog, District-the then Kamrup under 51 No. Jania LAC. It is also stated that his grandfather died prior to 1966 and, therefore, his name did not appear in the voters list of 1966.

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5. It is the plea of the petitioner that the names of his parents were enrolled in the voters list of 1997 as Ibrahim Ali and Maleha Khatun vide Part No.63(ka), Sl No.804 & 805, House No.05 of village Madarpur, PS. Sidli, Dist. Kokrajhar under 31 No. Sidli (SC) LAC. Subsequently, the petitioner’s name was recorded in the voters list of 2008 as Malek Ostam Ali vide Part No.85, Sl No.86, House No.29, village-Chotto Nilibari (Madarpur), PS. Basugaon, District-Chirang, BTAD, Assam under 31 No.Sidli (SC) LAC and his name also appeared in the voters list of 2010 as Malek Ostam Ali vide Part No.115, Sl No.88, House No.29, village-Sotto Nilibari (Madarpur), PS. Basugaon, Dist. Chirang, BTAD, Assam under 31 No. Sidli (SC) LAC. Similarly, his name also appeared in the subsequent voters list of 2015 as Malek Ostam Ali vide Part No.115, Sl No.118, House No.29, village-Sara Gaon (Motherpur), PS. Basugaon, Dist. Chirang, BTAD, Assam under 31 No. Sidli (SC) LAC. It is also stated that he was serving as a Home Guard on being so appointed on 09.04.1999 and in the appointment letter, his name was written as Malek Ostam instead of Malek Ostam Ali. The petitioner also referred to one linkage certificate issued on 04.06.2016 by the Chairman (VCDC Besorbari, Nangal Bhanga) of Madarpur village. The petitioner also referred to one certificate issued by the Gaonburah of Guileza village vide Charge No.9, PS. Kalgachia, Dist. Barpeta, Assam where his name is written as Kitab Ali instead of Malek Ostam Ali to show that he had shifted to Madarpur village of Chirang district from Charchariya village of Barpeta district. The petitioner also referred to another certificate issued by the Gaonburah of Madarpur village to show that he has been residing in Madarpur village for the last 23 years from 1993. The petitioner also referred to a Jamabandi copy of Mini Simla village vide Patta No.208, Dag No.339 and 340 under Rupshi Mouza of Barpeta district where his father’s name has been wrongly recorded as Ibrahim Sheikh Na instead of Ibrahim Ali.

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6. The petitioner also stated that in the notice issued by the Tribunal, the petitioner’s name has been shown as Kitab Ali instead of Malek Ostam Ali. He also mentioned that in the NRC details of 1951, the name of the petitioner’s grandfather was recorded as Aynuddin, son of Jamiruddin of village-Mini Simla, Thana/Town-Sorbhog, Mouza-Rupshi, District-Barpeta vide legacy data Code-120-0020-3598 with image ID 02108362. It is the plea of the petitioner that he is known as Kitab Ali in his village Charchariya instead of his written name Malek Ostam Ali. Kitab Ali is his nickname by which he is known for which notice was issued by the name, Kitab Ali.

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7. The Tribunal, after hearing the petitioner and considering the materials on record, however, came to a different finding that he is a foreigner and not a citizen of India.

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8. As regards the identity of the petitioner as to whether the petitioner, who claims to be Malek Ostam Ali and known by his nickname Kitab Ali, the record indicates that the authorities themselves were not clear about it as recorded in paragraph-5 of the impugned order. In paragraph-5, the Tribunal observed that at the time of argument, the counsel appearing for the petitioner verbally submitted that proceedee Kitab Ali, son of Ibrahim and Malek Ostam Ali is one and the same person. The Tribunal, accordingly, requested the Superintendent of Police (B), Barpeta to clarify as to whether the names Kitab Ali and Malek Ali refer to the same person or not and submit a report in this regard. The Tribunal thereafter, observed that the report received from the Superintendent of Police (B), Barpeta shows that one Kitab Ali, son of Ibrahim Ali was residing in Kalgachia village and he was a ‘D’ voter in the year 1977. Later on, Kitab Ali shifted to Madarpur village under Chirang district and presently staying there permanently. The Tribunal also observed that it could not be ascertained as to whether Kitab Ali, son of Ibrahim and Malek Ostam is one and the same person.

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9. In the impugned opinion, the Tribunal, with reference to the other evidences, went on to observe, as mentioned in paragraph-8 that in the voters list of 1966, the petitioner’s projected grandmother’s name appeared, where her age was shown as 42 years but, thereafter, no other voters list has been produced reflecting the name of the petitioner’s grandmother. It has been also observed that after the voters lists of 1966 and 1970, the petitioner submitted the voters list of 1997 and in the said voters list, the age of the mother of the petitioner has been shown as 45 years, which means that she was eligible to cast vote

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in the year 1985 but there is no voters list of 1985 showing the name of his mother. The Tribunal further observed that the petitioner did not submit any document in the name of Kitab Ali nor examined any family member to give evidence to prove that Kitab Ali and Malek Ostam is one and the same person. The Tribunal also observed that in the written statement, the petitioner stated that he is residing in Madarpur since 23 years from 1993 but he has not submitted any voters lists of 1985 and 1989 nor was there any explanation in that regard. The Tribunal again observed that in the Jamabandi copy, the petitioner’s father’s name has been recorded as Ibrahim Sheikh Na, son of Tashiran Nessa but the name of the father of said Ibrahim Sheikh Na has not been mentioned. Moreover, the name of the petitioner is also different in the said land document. The Tribunal, accordingly, held that the petitioner had failed to discharge his burden under Section 9 of the Foreigners Act, 1946 and declared him to be a foreigner.

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10. From the above, what comes out is that though the petitioner claims himself to be Malek Ostam in connection with which he has relied upon certain documents, the notice was not issued in the name of Malek Ostam but in the name of Kitab Ali by the Tribunal.

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11. Perusal of the original record also shows that the enquiry was made against Kitab Ali, son of Ibrahim, resident of Charchariya. The petitioner appeared before the Tribunal claiming that Kitab Ali is his nickname and Malek Ostam is his real name in connection with which he has produced certain documents. The Tribunal was also seized of this aspect relating to the identity of the procedee. In that connection, as clearly mentioned in paragraph-5 of the impugned order, the Tribunal also caused an enquiry to be conducted by the Superintendent of Police (Border), Barpeta to ascertain as to whether Kitab Ali and Malek Ostam are one and the same person. Though the Tribunal held that the petitioner had failed to prove that Kitab Ali and Malek Ostam refers to one and the same person, yet there is evidence to show that Kitab Ali, son of Ibrahim Ali had shifted his residence from Kalgachai to Madarpur under Chirang district and there is also evidence to the effect by the present petitioner that he had shifted his residence from Kalgachia to Madarpur of Chirang district.

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12. Under the circumstances, though the shifting of the present petitioner Malek Ostam @ Malek Ostam Ali, son of late Ibrahim Ali appears to be corroborated, yet the Tribunal held that the petitioner has failed to prove that Kitab Ali and Malek Ostam refer to one and the same

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person.

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13. We are of the view that before a person is declared to be a foreigner, it is essential that identity of the person is established without any doubt at least from the point of view of the State. There cannot be declaration of any person as a citizen or a foreigner without first clarifying his/her identity by the State. Since this was one of the issues before the Tribunal, the Tribunal ought to have decided conclusively against whom the Tribunal was proceeding. In our view, the said issue has not been decided conclusively. While there are official records, as reflected in paragraph-5 of the order that one Kitab Ali, son of Ibrahim, who had resided in Kalgachia had shifted his residence to Madarpur under Chirang district and since the petitioner himself stated that Malek Ostam, son of Ibrahim Ali, who was initially a resident of Kalgachia and later on shifted to Madarpur, there is every possibility that said Kitab Ali and Malek Ostam refer to one and the same person.

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14. We have also noted that at the initial stage of the proceeding the Tribunal had already caused an enquiry to be conducted by the Superintendent of Police (Border), Barpeta to ascertain the identity but did not arrive at any definitive conclusion before proceeding with the proceeding. The Tribunal could have proceeded against a person who was named in the reference and against whom there was an enquiry.

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15. Under the circumstances, we are of the view that it will be necessary to first establish the real identity of the person, who is being proceeded by the Tribunal at least from the point of view of the State, so that any opinion as to whether he is a foreigner or an Indian can be rendered after ascertaining the identity of the person proceeded. In our view, the State can also undertaken an exercise and cause an enquiry in this regard for which the State may also adduce evidence as regards the identity of the said Kitab Ali who the State is claiming to be a foreigner and not Indian.

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16. Under the circumstances, without going into the other aspects relating to the other evidences adduced, we are of the view that it is highly necessary to ascertain first as to who is the real proceedee so that the Tribunal can give a definitive opinion as regards the citizenship status of the concerned proceedee and not any other person.

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17. Accordingly and for the reasons discussed above, we remand the matter to the

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Tribunal by setting aside the impugned opinion dated 29.01.2018 passed by the Foreigners Tribunal No.5^th , Barpeta in FT Case No.546/2016 with the direction to the Tribunal to redetermine the real identity of the proceedee after hearing the petitioner and also the State as observed above and, thereafter, give a finding as to the citizenship status of the proceedee.

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18. The petitioner will appear before the Tribunal within a period of one month from the date of receipt of a certified copy of this order and the Tribunal will first determine the identity of the proceedee concerned and, thereafter, deal with the issue of citizenship in accordance with law.

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19. Petitioner will continue to remain on bail on similar terms and conditions as directed by this Court vide order dated 21.02.2018 and 20.07.2021 during the pendency of the proceeding before the Tribunal.

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20 . LCR be remitted forthwith to the concerned Tribunal.

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21. The writ petition is, accordingly, disposed of.

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JUDGE CHIEF JUSTICE (ACTING)

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Comparing Assistant

Malek Ostam @ Malek Ostam Ali @ Kitab Ali v. the Union of India and 5 Ors.

Case brief

What is this about?

What did the court decide?

Malek Ostam @ Malek Ostam Ali @ Kitab Ali v. the Union of India and 5 Ors.

Case brief

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